Williams v. Leach et al

Filing 5

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED that Magistrate Judge Dancks's Report-Recommendation (Dkt. No. 4 ) is ADOPTED. It is further ORDERED that Plaintiff's complaint is ACCEPTED for filing to the extent it asserts claims of Excessive Force, in violation of the Fourth Amendment, under 42 U.S.C. § 1983 against Defendants Leach and Young. It is further ORDERED that except as to the foregoing, the remaining claims asserted in the complaint are DISMISSED WITHOUT PREJUDI CE AND WITH LEAVE TO AMEND. It is further ORDERED that any amended complaint must be filed within thirty (30) days of the date of this Order. Any amended complaint must be a complete pleading which will replace the current complaint in total. It is f urther ORDERED that if Plaintiff files a timely amended complaint, it shall be referred to Magistrate Judge Dancks for review; and if Plaintiff fails to file a timely amended complaint, the Clerk is directed to issue summons as to defendants Leach and Young, and issue a General Order 25. Signed by Chief Judge Brenda K. Sannes on 9/25/2024. (Copy served upon pro se plaintiff via regular mail.) (nmk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CHARLES WILLIAMS, JR,
Plaintiff,

5:24-cv-721 (BKS/TWD)

v.
ERIC LEACH, ANDREW YOUNG
and MICHEAL MERKLEY,
Defendants.
Appearances:
Plaintiff pro se
Charles Williams, Jr.
Auburn, NY 13021
Hon. Brenda K. Sannes, Chief United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Charles Williams, Jr. commenced this proceeding under 42 U.S.C. § 1983, and
sought leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2). This matter was referred to
United States Magistrate Judge Therese Wiley Dancks who, on July 8, 2024, granted Plaintiff’s
application to proceed IFP, and issued a Report-Recommendation, recommending that Plaintiff’s
complaint be accepted for filing to the extent it asserts claims of Excessive Force, in violation of
the Fourth Amendment, against Defendants Leach and Young; and that the remaining claims
asserted in the complaint be dismissed without prejudice and with leave to amend. (Dkt. No. 4).
Magistrate Judge Dancks found that negligence is not cognizable as a federal claim under 42
U.S.C. § 1983, and that the complaint failed to identify which defendant or defendants conducted
the allegedly unlawful search. (Id.) Plaintiff was informed that he had fourteen days within
which to file written objections to the report under 28 U.S.C. § 636(b)(1), and that the failure to

object to the report within fourteen days would preclude appellate review. (Id. at 10-11). No
objections to the Report-Recommendation have been filed.
As no objection to the Report-Recommendation has been filed, and the time for filing
objections has expired, the Court reviews the Report-Recommendation for clear error. See
Petersen v. Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory
committee’s note to 1983 amendment. As Magistrate Judge Dancks found, negligence is not a
viable federal claim under 42 U.S.C. § 1983. (Dkt. No. 4, at 8). To the extent Plaintiff seeks to
include a negligence claim under state law, in addition to his claim for excessive force under the
Fourth Amendment in violation of § 1983, Plaintiff must allege facts establishing that the
defendant had a duty as to the Plaintiff, that the defendant breached that duty, and resulting
injury to the Plaintiff. Lloyd v. City of New York, 246 F. Supp. 3d 704, 730–31 (S.D.N.Y. 2017).
Having reviewed the Report-Recommendation for clear error and found none, the Court adopts
the Report-Recommendation in its entirety.
For these reasons, it is hereby
ORDERED that Magistrate Judge Dancks’s Report-Recommendation (Dkt. No. 4) is
ADOPTED; and it is further
ORDERED that Plaintiff’s complaint is ACCEPTED for filing to the extent it asserts
claims of Excessive Force, in violation of the Fourth Amendment, under 42 U.S.C. § 1983
against Defendants Leach and Young; and it is further
ORDERED that except as to the foregoing, the remaining claims asserted in the
complaint are DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND;
and it is further

2

ORDERED that any amended complaint must be filed within thirty (30) days of the
date of this Order. Any amended complaint must be a complete pleading which will replace the
current complaint in total; and it is further
ORDERED that if Plaintiff files a timely amended complaint, it shall be referred to
Magistrate Judge Dancks for review; and if Plaintiff fails to file a timely amended complaint, the
Clerk is directed to issue summons as to defendants Leach and Young, and issue a General Order
25; and it is further
ORDERED that the Clerk serve a copy of this Order on Plaintiff in accordance with the
Local Rules.
IT IS SO ORDERED.

Dated: September 25, 2024
Syracuse, New York

3